Posted on December 15, 2022 by Sue Puckeridge and James King 8

ALERT: Reforms to Sydney District, Regional and Local Planning Panels

The Department of Planning and Environment (Department) has announced a number of changes to the operation of Sydney District Panels and Regional Planning Panels (Regional Planning Panels)  and Local Planning Panels (LPPs).

The changes to the Regional Planning Panels have commenced.  Similar changes to the operation of  the the LPPs will come into effect on 24 April 2023.

The changes are intended to reduce corruption risks and improve the decision-making of the 36 LPPs and 9 Regional Planning Panels in New South Wales.

What are the changes?

Regional Planning Panels

Changes to the operation of Regional Planning Panels include:

• Requiring Regional Planning Panel members to be rotated regularly to randomise panel membership.
• Requiring Council to arrange probity checks on council nominees for Regional Planning Panel members, including a police check, a bankruptcy record check and a public register of real estate agents check. This aligns requirements for council nominees with the requirements for State nominees.
• Requiring proposed council nominees fill out a statutory declaration to indicate that they are not a real estate agent or a property developer as required by subsection 2.13(3) of the Environmental Planning and Assessment Act 1979. This aligns requirements for council nominees with the requirements with State nominees.
• Encouraging councils to appoint a minimum of 4 alternate council members that can sit on their relevant Regional Planning Panels to enable regular rotation.
• The Department has also indicated that they will appoint a minimum of 60 experts in the pool that Regional Planning Panels are able to choose from. The Department has indicated that recruiting for those appointments is in progress.

The new Regional Planning Panels – Operational Procedures are available in full here.

Local Planning Panels

The changes to the operation of LPPs include:

• Mandating a minimum of 15 experts and four community representatives in pools for LPPs.
• Requiring LPP members to be rotated regularly to randomise panel membership.
• Requiring probity checks, including a police check, a bankruptcy record check and a public register of real estate agents check for community representatives in LPPs.
• Requiring Councils when appointing nominees to have proposed nominees fill out a statutory declaration to indicate that they are not a councillor, a real estate agent or a property developer as required by subsection 2.18(3) of the Environmental Planning and Assessment Act 1979.
• Clarifying that applicants can request to formally meet with LPPs to brief them on any project.
• Implementing a framework for the Department to induct LPPs.

These changes come into effect on 24 April 2023 in order to give councils time to recruit additional panellists. Until that date the previous Operational Procedures Direction dated 30 June 2020 and Appointment of New Members Direction dated 12 December 2018 remain in force.

The Local Planning Panels Direction – Operational Procedures applicable from 24 April 2023 is available here.

The Local Planning Panels Direction – Appointment of New Members applicable from 24 April 2023 is available here.

Reasons for the reforms to the operation of the planning panels

The Department has confirmed that they are not aware of any inappropriate lobbying or undue influence of planning panels. We consider that these changes are reflective of a wider NSW Government approach in relation to corruption risks in local government. In recent investigations (Operation Dasha, Operation Eclipse and Operation Witney), the Independent Commission Against Corruption (ICAC) considered the corruption risks associated with the lobbying of councillors and made corruption prevention recommendations. For example, on the back of those ICAC Operations, the Office of Local Government is currently proposing to develop guidelines to enhance transparency around the lobbying of councillors, see our blog on that issue here.

The changes to planning panels are intended to reduce certainty about who will sit on the planning panels, making it more difficult to predict who will make decisions on particular projects and reducing the potential for applicants to influence and improperly lobby panel members. At the present time, eight experts are appointed on average by individual councils to their LPP’s pool. For Regional Planning Panels there is currently one pool of approximately 55 State-appointed members and alternate members.

Another benefit of the changes which the Department points to is having more members in the pool will make it easier for panellists with the most relevant skills and experience to be selected to determine an application.

Conclusion

These changes were not publicly exhibited.  The Department’s view is that they are not major and prior exhibition was not necessary.

In respect of the Regional Planning Panels, Councils should as soon as possible consider whether further persons are to be appointed as alternate members and how best to manage the new probity requirements.

Preparation for the forthcoming changes to the LPPs should also commence.

The Department has flagged that it is also updating rule and guidelines to support more frequent rotation of LPP members and recommending that LPPs be monitored to ensure they are adequately rotating their members. They have also indicated that they are preparing procedures and induction materials for newly appointed LPP members, to ensure they are aware of their responsibility to report lobbying.  We will monitor these changes as they are issued.

If you would like to discuss the issues raised in this post, please leave a comment below or contact Sue Puckeridge on 8235 9702 or James King on 8235 9722.